JUDGMENT

Agarwala, J. - This appeal arises out of proceedings under the Guardians and Wards Act. Three persons applied to be appointed guardian of the person of a male minor, named, Mohammad Ayub aged about four years. These three persons were Ahmadi Begam, father's mother's mother of the minor, Zohra Khatun, father's sister of the minor and Mt. Haliman Khatun, own mother of the minor who is the appellant before us. The minor's father Mohammad Yaqub died on 19th January 1944. After his death, Mt. Haliman Khatun, on 1st December 1944, married Ahmad Husain, her father's sister's son. The learned Judge of the Court below held that by this marriage Mt. Haliman Khatun had forfeited her right to be appointed as the guardian of the person of her minor son. He therefore appointed Zohra Khatun, father's sister of the minor as the guardian of his person. It is against this order that Mt. Haliman Khatun has filed these three appeals.

2. Under the Muhammadan law mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of a female child until she has attained puberty. But it has been stated that the mother loses the right of custody if she marries a stranger, that is, a person not related to the child within the prohibited degrees. This rule is mentioned in Mulla's Mohammedan Law, 12th Edn., p. 276 as follows:

A female, including the mother, who is otherwise entitled to the custody of a child loses the right of custody-

(1) if she marries a person not related to the child within the prohibited degrees e.g., a stranger.

3. In Tyabji's Mohammedan Law, para. 249, 3rd Edn., p. 280 the rule is stated as "the mother loses the claim that she might otherwise have to the custody of a child if she marries a man not related to the child within the prohibited degrees."

4. Amir Ali states the rule to the same effect at p. 300, volume II and quotes Radd-ul-Muhtar as saying

the right of hizanat is lost by the mother marrying a ghair-mahram of the infant, that is, one not related to the infant within the prohibited degrees, for a stranger would not be agreeable to her bringing up the child with affection and care.

5. In Hedaya the origin of the rule is also mentioned. According to it the rule is based upon a tradition of the prophet according to which he is said to have told a woman who asked about the custody of her child that she was to have it as against the father of the child provided she did not marry a stranger.

6. Now a "stranger" referred to in the textbooks means, as clearly stated in Radd-ul-Mu'htar, a "ghair.mahram" of the infant i.e., one not related to the infant within the prohibited degrees. The rule about prohibited degrees relates to the law of marriage. Under that rule, a man is prohibited from marrying certain female relations; so also a female is prohibited from marrying certain male relations. It cannot possibly apply when both the parties are of the same sex. The rule therefore that the mother loses her right of hizanat on marrying a person not within the prohibited degrees of the minor may be said not to apply, upon its very terms, when the minor is male because there can be no question of prohibited degrees between the male minor and the husband of the mother. There is another rule which may throw light on the subject and it is that no male has a right to the custody of a female child unless he is a mahram, that is, stands to her within the prohibited degrees of relationship and cannot under any circumstance marry her. (Ameer Ali's Mohammedan Law, 4th Edn. p. 298.)

7. It may be observed that the husband of the mother may marry the female minor provided he divorces the mother before- the consummation of marriage or separates himself from the mother before the consummation of marriage with her. (Ameer Ali's Mohammedan Law, vol. II, p. 449.) It is quite possible that the basis of both the rules (1) that a male is not entitled to the custody of a female minor when he is not related to her w